General Terms and Conditions of Sale and Delivery

Section 1 Scope of application

1. These General Terms and Conditions of Sale (GTC) apply to all our current and future business relationships with our Clients (‘Buyers’). These General Terms and Conditions of Sale shall apply only provided that the Buyer is a merchant (Section 14 of the German Civil Code (BGB)), a legal person under public law or a special fund under public law within the meaning of Section 310 Paragraph 1 of the German Civil Code.

2. Our General Terms and Conditions of Sale shall apply exclusively. Any deviating, conflicting or supplementary general terms and conditions of the Buyer shall only become part of the contract if and to the extent that we have expressly consented to their validity. This requirement of consent also applies if the Buyer refers to its general terms and conditions in the order and we have not expressly objected to the general terms and conditions.

3. These General Terms and Conditions of Sale shall apply to contracts for the sale and/or delivery of movable goods (‘Goods’). It does not matter whether we manufacture the Goods ourselves or purchase them from suppliers (Sections 433, 650 of the German Civil Code). Unless otherwise agreed, the General Terms and Conditions of Sale shall apply in the version valid at the time the Buyer places their order or in the version most recently communicated to them in text form, as a framework agreement, also for similar future contracts, without us as the Seller being required to refer to them again on a case-by-case basis.

4. We are entitled to amend these General Terms and Conditions of Sale even during the existing contractual relationship, in compliance with the following procedure, provided that the amendment is reasonable for the Client, taking our interests into account, i.e. without significant legal or economic disadvantages, and provided that there is a valid reason for the amendment. Such a reason shall exist, in particular, if new technical developments or changed legislative and judicial requirements require an amendment to the General Terms and Conditions of Sale.

5. We shall notify the Client of any amendments to the General Terms and Conditions of Sale at least 30 days before the amendments are scheduled to take effect. The Client may object to the amendments in writing within 30 days of receipt of the notification. If no objection is made and the Client continues to use the services after the objection deadline has expired, the changes shall be deemed to have been effectively agreed for all services to be provided after the expiration of the deadline.

6. In the notification, we shall specifically point out the aforementioned deadline and the legal consequences of its expiration if the opportunity to object is not exercised.

7. Individual agreements made with the Buyer in individual cases (including ancillary agreements, additions and amendments) and information in our order confirmation shall take precedence over these General Terms and Conditions of Sale. Subject to proof to the contrary, a written contract or our written confirmation shall prevail over the content of such agreements.

8. Legally relevant declarations and notifications by the Buyer regarding the contract (e.g. notifications of defects, setting of deadlines, withdrawal or reduction) must be made in writing, i.e. in written and text form (e.g. letter, email, fax).

Further statutory formal requirements and further evidence (if necessary in case of doubts about the legitimacy of the person making the declaration) remain unaffected.

9. If references are made to the applicability of statutory provisions, it should be noted that these are merely intended to clarify the matter. The statutory provisions shall apply – even if no corresponding clarification has been made – to the extent that they are not modified or excluded by the General Terms and Conditions of Sale.

Section 2 Offer and contract conclusion

1. Our offers are subject to change and non-binding. Invoicing shall be based on the prices valid on the date of delivery, regardless of the list price. This shall also apply if we have provided the Buyer with catalogues, technical documentation (e.g. drawings, plans, calculations, estimates, references to DIN standards) and other product descriptions or documents (including in electronic form). We reserve ownership and copyright to all documents provided to the Buyer in connection with the order. These documents may not be made accessible to third parties unless we grant the Buyer our express written consent.

2. The Buyer’s order for the Goods constitutes a binding contractual offer. Unless otherwise stated in the order, we are entitled to accept this contractual offer within two weeks of its receipt.

3. The Buyer may declare acceptance of the contractual offer either in writing (e.g. by order confirmation) or by delivery of the goods to the Buyer. In the event that we, as the Seller, do not accept the Buyer’s offer within the period specified in Section 2.2, any documents sent to the Buyer must be returned to us immediately.

4. The conclusion of the contract is subject to the condition subsequent of proper and timely delivery to us by our suppliers, if and to the extent that we are not responsible for the improper or timely delivery. In the event of the occurrence or foreseeable occurrence of the condition subsequent, the Buyer shall be informed by us immediately and any payments already made by the Client shall be refunded immediately.

5. We shall be entitled to withdraw from the contract in accordance with these Terms and Conditions if, after the conclusion of a contract between us and the Client, circumstances arise that make it unsuitable to grant credit to the Client due to the Client’s financial circumstances, meaning that the Client can no longer be considered creditworthy. The same applies if these circumstances already existed at the time of contract conclusion and were unknown to us due to circumstances beyond our control.

Section 3 Prices and payment agreements

1. Unless otherwise agreed in writing in individual cases, our prices shall apply ex warehouse, plus statutory sales tax, at the time of contract conclusion.

Packaging costs will be invoiced separately. Unless a fixed price agreement has been made, we reserve the right to make reasonable price changes due to changes in labour, material and distribution costs for deliveries made three months or more after contract conclusion.

2. In the case of a sale by dispatch, the Buyer shall bear the transport costs ex warehouse and the costs of any transport insurance requested by the Buyer. In the event that we do not invoice the transport costs incurred in individual cases, we shall charge a flat-rate transport fee (excluding transport insurance) of 150 euros per pallet. Any customs duties, fees, taxes and other public charges shall be the responsibility of the Buyer.

3. Payment of the purchase price must be made exclusively to the account specified overleaf. Cash discounts shall only be permitted by special written agreement.

4. Unless otherwise agreed, the purchase price shall be due and payable upon invoicing and delivery or acceptance of the Goods.

However, we are entitled at any time, even within the framework of an ongoing business relationship, to make a delivery, in whole or in part, only against advance payment.

We shall declare a corresponding reservation no later than with the order confirmation.

5. The Buyer shall be in default if the above payment deadline expires. During the period of default, the purchase price shall bear interest at the applicable statutory default interest rate according to Section 288 Paragraph 2 of the German Civil Code in the amount of eight percentage points above the respective base interest rate.

We reserve the right to assert further damages for default. With regard to merchants, our claim to commercial default interest pursuant to Section 353 of the German Commercial Code (HGB) remains unaffected.

6. If and to the extent that the Client defaults on a payment and/or the fulfilment of an obligation, all claims arising from any business relationship with this Client to which we are entitled shall become due immediately and in full.

7. We are entitled to charge a reminder fee of 10 euros for each reminder letter sent after the default has occurred.

8. If, after contract conclusion, it becomes apparent that our claim to payment of the purchase price is at risk due to the Buyer’s lack of performance (e.g. due to an application for the opening of insolvency proceedings), we shall be entitled to refuse performance and, if applicable, after setting a deadline, to withdraw from the contract in accordance with the statutory provisions (Section 321 of the German Civil Code). The statutory provisions regarding the dispensability of setting a deadline remain unaffected.

9. In the event of a default in payment and/or a deterioration in the financial situation of the Buyer, we shall be entitled to demand advance payments or security in an appropriate amount with regard to all claims to which we are entitled from any business relationship with the Client, and to refuse performance until advance payment and/or security are provided to us. Furthermore, in the event of a demand for advance payment and/or security in accordance with the above, we shall be entitled to withdraw from the contract with the Client and simultaneously demand compensation in lieu of performance if the Client does not comply with this demand within four days of receiving our demand.

Section 4 Rights of retention

The Buyer shall only be entitled to offset rights of retention rights if their claim has been legally established or is undisputed and their counterclaim is based on the same contractual relationship. In the event of defects in the delivery, the Buyer’s counterclaims, in particular in accordance with Section 8.6, Clause 2 of these General Terms and Conditions of Sale, shall remain unaffected.

Section 5 Delivery dates and default in delivery

1. The delivery date shall be agreed upon individually. Information provided by us upon acceptance of an order is non-binding.

2. In the event that we are unable to meet contractually agreed delivery dates for reasons beyond our control, we must inform the Buyer of this fact immediately and, at the same time, provide the expected or new delivery date. If a delayed delivery cannot be made due to the unavailability of the service, even within the newly announced delivery date, we shall be entitled to withdraw from the contract in whole or in part; we must immediately reimburse any consideration already provided by the Buyer (in the form of payment of the purchase price).

Unavailability of the service exists, for example, if our supplier has not delivered to us on time, if we have concluded a congruent hedging transaction, if other disruptions in the supply chain occur (e.g. due to force majeure) or if we are not obligated to procure the Goods in the individual case.

3. Whether default in delivery exists on our part as the Seller is determined by statutory provisions. However, a reminder from the Buyer is a prerequisite for default in delivery on our part as the Seller. In the event of default in delivery, the Buyer may claim lump-sum compensation for damages caused by the default. The lump-sum compensation shall amount to 0.5% of the net price (delivery value) for each completed calendar week of the default, but no more than 5% of the delivery value of the delayed Goods. We reserve the right to provide appropriate evidence that the Buyer has suffered no damage or only less damage than the aforementioned lump sum.

4. The Buyer’s rights pursuant to Section 9 of these General Terms and Conditions of Sale and our statutory rights, particularly in the event of an exclusion of the obligation to perform (e.g. due to the impossibility or unreasonableness of performance and/or subsequent fulfilment), remain unaffected.

Section 6 Delivery, transfer of risk, acceptance, delay in acceptance

1. Delivery shall be ex warehouse. The warehouse is also the place of performance for delivery and the place for any subsequent performance. In the event that the Buyer wishes the Goods to be shipped to a different destination (sale by dispatch), the Buyer shall bear the shipping costs. In the event that nothing has been contractually agreed upon, we ourselves may determine the type of shipping (packaging, shipping route, transport company).

2. The risk of accidental loss and accidental deterioration shall pass to the Buyer upon handover of the Goods to the Buyer. In the context of a sale by dispatch, the risk of accidental loss of the Goods, accidental deterioration of the Goods and the risk of delay pass to the Buyer upon delivery of the Goods to the freight forwarder or carrier. In the event of a contractual agreement for acceptance of the Goods, this shall be decisive for the transfer of risk. Further statutory provisions of the law on contracts for work and services remain unaffected. Handover or acceptance of the Goods shall still be deemed to have been effected if the Buyer is in default of acceptance.

3. If, after the conclusion of the contract, new official obligations are imposed on us in connection with the delivery of Goods that did not apply at the time of contract conclusion and that affect the specific contract, the obligations resulting from the respective official orders shall be deemed to have been contractually agreed. Any additional costs of any kind arising from this, for example in the form of increased or new taxes, expenses and other charges, increases or changes in possible import and customs regulations, shall be borne by the Buyer.

4. In the event that the Buyer is in default of acceptance or our delivery is delayed for other reasons for which the Buyer is responsible, we shall be entitled to compensation from the plaintiff for the damage incurred, including additional expenses (e.g. storage costs).

If this is the case, we shall invoice the Buyer a flat-rate compensation of EUR [ ] per calendar day (beginning with the delivery date or, if no delivery date has been specified, with the notification of the readiness of the Goods for dispatch). Our statutory claims (reimbursement of additional expenses, reasonable compensation, termination) and proof of greater damages remain unaffected.

5. Proof of greater damages and our statutory claims (in particular, reimbursement of additional expenses, reasonable compensation, termination) shall remain unaffected; however, the lump sum shall be offset against further monetary claims. However, the Buyer reserves the right to prove that we have incurred no damage at all or only significantly less damage than the above lump sum.

6. Partial deliveries are permissible if the partial delivery can be used by the Client for the contractually agreed purpose, the delivery of the remaining ordered Goods is assured and the Client does not incur any significant additional expenditure or costs as a result, unless we agree to assume these costs.

Section 7 Retention of title

1. We shall retain title to the delivered Goods until full payment of all our current and future claims arising from the purchase contract and an ongoing business relationship (secured claims) have been made.

2. Until full payment of the secured claims has been made, the Goods subject to retention of title may not be pledged to third parties or transferred as security. The Buyer must notify us immediately in writing in the event of an application for the opening of insolvency proceedings or in the event of third-party seizure (e.g. garnishment) of any Goods belonging to us. If the third party is unable to reimburse us for the legal and extrajudicial costs of a lawsuit pursuant to Section 771 of the Code of Civil Procedure (ZPO), the Buyer shall be liable for any losses incurred by us.

3. In the event of breach of contract by the Buyer, in particular non-payment of the purchase price due, we shall be entitled to withdraw from the contract in accordance with the statutory provisions and/or to demand the return of the Goods based on the retention of title. The demand for return shall not simultaneously constitute a declaration of withdrawal; rather, we shall be entitled to merely demand the return of the Goods and reserve the right to withdraw. In the event that the Buyer fails to pay the purchase price due, we must have unsuccessfully set the Buyer a reasonable deadline for payment before asserting these rights. This shall only apply if such a deadline is not dispensable under statutory provisions.

4. Until revoked in accordance with Section 7.4.c, the Buyer shall be authorised to resell and/or process the Goods subject to retention of title in the ordinary course of business. In this case, the following provisions shall apply in addition:

a) Products resulting from the combination, mixing or processing of our Goods are subject to retention of title to their full value, with us being deemed the manufacturer. In the event that the ownership rights of third parties remain intact during combination, mixing or processing with the goods of third parties, we acquire co-ownership in proportion to the invoice values of the combined, mixed or processed goods. In all other respects, the same applies to the resulting product as to the Goods delivered subject to retention of title. For security purposes, the Buyer shall also assign to us any claims that arise against a third party as a result of the combination of the reserved Goods with real property. In this case, we accept the assignment.

b) The Buyer hereby assigns to us, for security purposes, all claims against third parties arising from the resale of the Goods or products, in the amount of the final invoice amount (including VAT) agreed with us, in full or in the amount of our possible co-ownership share pursuant to Section 7.4.a. We accept this assignment. The Buyer’s obligations listed in Section 7.2 also apply with regard to the assigned claims.

c) The Buyer remains authorised to collect the claim alongside us. As long as the Buyer fulfils its payment obligations to us, there is no lack of performance on the part of the Buyer and we do not assert retention of title by exercising a right pursuant to Section 7.3, we undertake not to collect the claim. If we assert the exercise of a right pursuant to Section 7.3, we may require the Buyer to disclose the assigned claims and their debtors, as well as to provide all information necessary for collection, hand over the relevant documents and notify the debtors (third parties) of the assignment.

Furthermore, we shall be entitled to revoke the Buyer’s authority to resell and process the Goods subject to retention of title.

d) In the event that the realisable value of the collateral exceeds our claims by more than 10%, we shall release collateral of our choice at the Buyer’s request.

5. The Buyer shall be obligated to treat the purchased item with care until ownership has been transferred to it. In particular, it shall be obligated to adequately insure it at its own expense against theft, fire and water damage to its replacement value (note: only permitted for the sale of high-value goods). If maintenance and inspection work must be carried out, the Buyer must carry it out in a timely manner at its own expense.

Section 8 Buyer’s claims for defects

1. The statutory provisions apply to the Buyer’s rights in the event of material and legal defects (including incorrect and incomplete deliveries, improper assembly/installation or inadequate instructions), unless otherwise provided below. This shall not affect the statutory provisions governing the sale of consumer goods (Sections 474 et seq. of the German Civil Code) and the Buyer’s rights arising from separately issued guarantees, particularly those provided by the manufacturer.

2. Agreements we have made with buyers regarding the quality and intended use of the Goods (including accessories and instructions) generally form the basis of our liability for defects within the scope of the warranty. A quality agreement includes all product descriptions and manufacturer information that are the subject of the individual contract. In the event that no quality agreement has been made, the existence of a defect must be assessed in accordance with the provisions of Section 434 Paragraph 3 of the German Civil Code. In this context, it should be noted that public statements made by the manufacturer in advertising or on the product label take precedence over statements made by other third parties.

3. We shall not be liable for defects that the Buyer is aware of at the time of contract conclusion or that it is grossly negligent in failing to know of, in accordance with Section 442 of the German Civil Code.

4. Any claims of the Buyer for defects shall only exist if the Buyer has complied with its statutory inspection and notification obligations (Sections 377, 381 of the German Commercial Code). If the Goods are building materials or other goods intended for installation or other further processing, an inspection must be carried out immediately before processing. Written notification must be made to us immediately if a defect becomes apparent during delivery, inspection or at a later date. Obvious defects must be reported in writing immediately upon receipt of the delivery, and non-obvious defects must also be reported immediately upon discovery of the defects. In the event that the Buyer fails to comply with or does not fulfil the obligation to properly inspect and/or report defects, our liability for defects that are not reported, not reported in a timely manner or not reported properly is excluded in accordance with statutory provisions. If the Goods were intended for further processing, this also applies if the defect only became apparent after the corresponding processing due to non-compliance with or violation of one of these obligations. In this case, the Buyer shall not be entitled to reimbursement of ‘installation and removal costs’.

5. If the delivered goods are defective, we as the Seller shall have the right to choose whether to provide subsequent performance by remedying the defect (repair) or by delivering a defect-free item (replacement delivery). If the type of subsequent performance chosen by us is unreasonable for the Buyer in the individual case, the Buyer may refuse it. However, we reserve the right to refuse subsequent performance under the statutory conditions. Furthermore, we shall be entitled to make the subsequent performance to be provided by us dependent on the Buyer paying the purchase price due. However, the Buyer has the right to retain a portion of the purchase price that is reasonable in relation to the defect.

6. The Buyer must grant us the necessary time and opportunity to provide the subsequent performance due. In particular, the Buyer must hand over the item for which it has claimed a defect to us for inspection purposes. In the event that we deliver a subsequent delivery of a defect-free item, the Buyer must return the defective item to us in accordance with statutory provisions. However, the Buyer shall not be entitled to a right of return.

7. In the event of a defect, we shall reimburse the expenses necessary for inspection purposes and subsequent performance (transport, labour and material costs) in accordance with statutory provisions and these General Terms and Conditions of Sale. However, we may demand reimbursement from the Buyer for costs incurred due to an unjustified request for defect rectification if the Buyer knew or could have recognised that there was actually no defect.

8. The Buyer has the right to remedy the defect itself and to demand reimbursement of the objectively necessary expenses in this regard in urgent cases (e.g. in the event of a risk to operational safety or to prevent disproportionate damage). The Buyer must notify us immediately if it undertakes the remediation itself. In the event that we are entitled to refuse subsequent performance under statutory provisions, the Buyer has no right to perform the remediation itself.

9. The Buyer may withdraw from the purchase contract or reduce the purchase price in accordance with statutory provisions if a deadline set by the Buyer for subsequent performance has expired without success or is dispensable under statutory provisions. However, the Buyer has no right of withdrawal in the event of a minor defect.

10. The Buyer’s claims for reimbursement of expenses pursuant to Section 445a Paragraph 1 of the German Civil Code are excluded, unless the last contract in the supply chain is a purchase of consumer goods (Sections 478 and 474 of the German Civil Code).

11. Claims for damages or reimbursement of fruitless expenditure by the Buyer (Section 284 of the German Civil Code) shall exist only in accordance with Sections 9 and 10, even in the event of a defect.

Section 9 Limitation period

1. The general limitation period for claims resulting from material or legal defects is one year from delivery, notwithstanding Section 438 Paragraph 1 No. 3 of the German Civil Code. In the event that acceptance has been contractually agreed, the limitation period begins upon acceptance.

2. The above limitation periods under the law of purchase shall also apply to contractual and non-contractual claims for damages by the Buyer based on a defect in the Goods, unless the application of the regular statutory limitation period pursuant to Sections 195 and 199 of the German Civil Code would result in a shorter limitation period in the individual case. The Buyer’s claims for damages pursuant to Sections 10.1 and 10.2.a), as well as those under the Product Liability Act, are subject to the statutory limitation periods.

Section 10 Other liability

1. Unless otherwise stated in these General Terms and Conditions of Sale, including the following provisions, we as the Seller shall be liable for breaches of contractual and non-contractual obligations in accordance with the statutory provisions.

2. Within the scope of liability based on fault, we shall be liable for damages only in cases of intent and gross negligence, regardless of the legal basis. In the event of simple negligence, we shall be liable, subject to statutory limitations of liability (e.g. due diligence in one’s own affairs; minor breach of duty), only:

a) for damages resulting from injury to life, body or health

b) for damages resulting from the breach of a material contractual obligation (obligations whose fulfilment is essential for the proper performance of the contract and on whose compliance the contractual partner relies and may rely). However, our liability in this case shall be limited to compensation for foreseeable, typically occurring damages.

3. The limitations of liability resulting from Section 10.2 shall also apply to third parties and in the event of breaches of duty by persons for whose fault we are legally responsible. If a defect was fraudulently concealed and a guarantee for the quality of the Goods was provided, the limitations of liability do not apply. This shall also apply to claims by the Buyer under the Product Liability Act.

4. The Client shall not be liable for any further damages. In particular, the Client shall not be liable for defects existing at the time of contract conclusion (Section 536a of the German Civil Code, lost profits or other consequential damages caused by defects, unless the conditions of Sections 10.1 and 10.2 are met.

5. The Buyer may withdraw from or terminate the contract due to a breach of duty not resulting from a defect only if we, as the Seller, are responsible for the breach of duty.

6. The Buyer’s right of termination (in particular pursuant to Sections 650 and 648 of the German Civil Code) is excluded. Otherwise, the statutory requirements and legal consequences shall apply.

Section 11 Choice of law and jurisdiction

1. These General Terms and Conditions of Sale and the contractual relationship between us, as the Seller, and the Buyer shall be governed by the laws of the Federal Republic of Germany, excluding international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods.

2. Insofar as the Buyer is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, our registered office in Kötterhof 20, Steinfeld-Mühlen, Germany, shall be the exclusive, including international, place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship. The same shall apply if the Buyer is an entrepreneur within the meaning of Section 14 of the German Civil Code.

3. We shall also be entitled to file legal action at the place of performance of the delivery obligation pursuant to these General Terms and Conditions of Sale or a prior individual agreement, or at the Buyer’s general place of jurisdiction. Priority statutory provisions (exclusive places of jurisdiction) remain unaffected.